November 25, 2008

Can Hillary Clinton Serve? (The Pesky Emoluments Clause)

Over at The Volokh Conspiracy there is some discussion of a neat topic that has been the subject of occasional conversation around here, the application of The Emoluments Clause ("No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time. . . ) to Hillary Clinton's capacity to serve as Secretary of State, at least until the end of the term to which she was elected. The Constitutional Convention history as well as the subsequent American experience is gathered, along with some observations, by Adam Bonin here. The former site quotes Michael Paulsen's suggestion that the text is clear and that Clinton is barred. The plain language of the Clause certainly seems to bar service. Of the several ways around this hurdle, Professor Paulsen (likes none - but if he must choose he) likes best - though somewhat tongue in cheek I think -- the Constitution's use of the male pronoun, as that allows Clinton to serve without violating the precise text.

There is, to be sure, the problem of standing; there is no cabinet
member in-waiting to challenge the appointment and it might be that the
Constitution can simply be violated if those constitutional officers
who should abide by it (The President, those who confirm the nominee)
decline to do so. On such grounds, a President might be elected, and
might serve, despite a failure to be of age or to be a citizen. There
are some good reasons for standing doctrine, but for those of us who do
not live in the world of constitutional law scholarship, those good
reasons do not have much to do with this likely failure of law to keep
up with apparent violations of it.

For nontextualists, or loose ones, the best argument against legal
formalism here is that the point of the Emoluments Clause seems to be,
or perhaps must be, a fear of conflicts of interest. That fear can be
put aside if the new cabinet member declines to accept the higher
salary put into law by the President's signature (note that the Clause
does not require that the Senator have voted for the increase). Some
suggest that a new law could be passed in order retroactively to return
the salary to its pre-Senate-election level. On the face of it, these
solutions do not solve the problem presented by the text, they simply
eliminate the apparent conflict of interest that is likely behind the
text.

I think an even better argument againt too much textualism is that
it leads to absurd results. A President on his or her way out (or a
hostile Congress) could simply increase salaries of cabinet and other
positions - and thus make all continuing members of Congress ineligible
for these posts. Textualism is a useful constraint, but it need not
cause us to insist on absurdities. This is the main point of the
present post.

If we would feel better with an escape method, then another
possibility is for the Senator to resign before "appointment." After
all the Constitution could have said "no person shall, during the time
for which he was elected to the Senate or House, be appointed to any
civil office . . . " But instead it says "No Senator or Representative
shall, during the time for which he was elected, . . " In that
manner, when Clinton is appointed she will be a mere person rather than
a Senator and perhaps that will calm our textual nerves. Of course the
problem with this method is that it is also absurd, in that it allows
an end run around the presumed purpose of the Clause. Even a Senator
who pushed through a new civil office or a salary increase in order to
enjoy it himself, would be eligible by resigning on the eve of
appointment. There is some risk of resignation followed by
non-appointment, and that might constrain the strategist, but that also
raises the question of contingent resignations, a question best left
for the next Supreme Court resignation.

Comments

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"too much textualism"?? try "any" textualism. Can we ingore any part of the Constitution if we can think of a scenario that would lead to an undesireable result? Giving Congress the legisltaive power means that a hostile congress can pass absurd laws! Therefore interpreting the Constitution as giving Congress the power to pass laws is too much textualism!

Thanks for this thoughtful post. I'd like to add a couple points here.

First, you say that "Some suggest that a new law could be passed in order retroactively to return the salary to its pre-Senate-election level." In fact, this has been done several times. The first was for AG William Saxbe. The author of the DOJ opinion blessing the use of the such a device was Robert Bork.

Next, I agree entirely with your point that we should eschew a textual reading when it leads to odd results. However, in this case the text is up for grabs (i.e. if Congress negates a pay increase, has the pay been increased? Some say yes, some no).

Finally, I don't think the President can unilaterally change salaries. I BELIEVE what happened here was that the federal law (enacted I think before HRC's current Senate term) provided for a COLA, which the EO made operational. This raises a couple of interesting questions:

Does a COLA amount to an increased salary?

Would it make a difference if the statute implementing it was enacted during the appointees term in Congress rather than prior?

I think that there are a lot of interesting questions raised by this appointment, but it probably shouldn't turn on a constitutional ambiguity.